Citation Nr: 1035646 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 06-29 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for disability claimed as swollen and painful joints to include the hands, wrists, elbows, neck, back, hips, and knees. 2. Entitlement to service connection for an eye disability, claimed as glaucoma. 3. Entitlement to an initial rating in excess of 20 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from August 19, 2004 through January 21, 2009. 4. Entitlement to a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from January 22, 2009. 5. Entitlement to a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO denied the Veteran's claims for service connection for an eye disability (claimed as glaucoma), depression, a gastrointestinal disability (claimed as irritable colon syndrome), swollen and painful joints (claimed as hands, wrists, elbows, shoulders, neck, back, hips, and knees), and a sleep disorder. In March 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2006. This appeal also arose from a March 2008 rating decision in which the RO service connection and assigned an initial 10 percent rating for bilateral pes planus, effective August 19, 2004. In March 2008, the Veteran filed an NOD, expressing disagreement with the initial rating assigned. In an August 2008 rating decision, the RO increased the initial rating to 20 percent, effective August 19, 2004. An SOC reflecting this increase was issued in August 2008, and a September 2008 statement from the Veteran was accepted as a substantive appeal. In February 2009, the RO awarded a 30 percent rating for bilateral pes planus, effective January 22, 2009, but denied a rating in excess of 30 percent prior to that date (as reflected in a February 2009 rating decision and supplemental SOC (SSOC)). In a February 2009 rating decision, the RO granted the Veteran's claim for service connection for depressive disorder with symptoms of sleep impairment and irritable bowel syndrome (IBS). The Veteran did not appeal the initial ratings assigned for either of these claims. Hence, the only claims remaining on appeal are those set forth on the cover page. Because the Veteran disagreed with the initial rating assigned following the grant of service connection for bilateral pes planus, the Board characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher rating for the disability from January 22, 2009, inasmuch as higher ratings for the disability are available before and after this date, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has recharacterized the appeal as now encompassing the matters set forth as issues three and four on the title page. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). On his Form 9, the Veteran indicated that he desired a hearing before a Veterans Law Judge at the RO, and subsequently indicated that he instead desired a Board video-conference hearing. However, in a December 2009 letter, the Veteran withdrew his request for a hearing. The request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2009). The Board notes that the RO adjudicated the matter of arthritis characterized as service connection for seronegative polyarthritis or rheumatoid arthritis. However, the Veteran has several diagnoses of record pertaining to arthritis. Thus, consistent with the current record, the Board has recharacterized the appeal involving arthritis as encompassing the first matter set forth on the title page. The Board notes that, while the Veteran previously was represented by Julieanne E. Steinbacher, a private attorney, in November 2005, the Veteran granted a power-of-attorney in favor of Disabled American Veterans in February 2009 with regard to the claims on appeal. The Veteran's current representative has submitted written argument on his behalf. The Board recognizes the change in representation. The Board's decision addressing the claims for service connection for disability claimed as swollen and painful joints to include the hands, wrists, elbows, neck, back, hips, and knees, for a rating in excess of 20 percent from for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from August 19, 2004 through January 21, 2009, and for a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from January 22, 2009, are set forth below. The claims of service connection for an eye disability, claimed as glaucoma, and a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra- schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008, are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that the record raised the issues of entitlement to a rating in excess of 30 percent for IBS, entitlement to hemorrhoids, secondary to IBS, entitlement to a total rating based on individual unemployability due to service-connected disabilities, and a request to reopen the claim for service connection for bilateral hearing loss. It does not appear that any of these claims has yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. The Veteran complained of foot pain, leg pain, ankle pain, joint pain and swelling, and cramps in his legs while he was on active duty; and has asserted periodic episodes of these symptoms thereafter. 3. The Veteran has a current diagnosis of palindromic rheumatoid arthritis that has been related by competent medical professionals to the Veteran's complaints of joint pain and swelling, and cramps in his legs, while on active duty. 4. From the August 19, 2004 effective date of the grant of service connection through February 18, 2008, the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma was manifested by no more than overall moderately severe symptomatology. 5. Since the date of a February 19, 2008 VA examination, the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma has been manifested by no more than severe symptomatology; actual loss of use of the foot has not been shown. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for palindromic rheumatoid arthritis affecting multiple joints are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a) (2009). 2. The criteria for an initial rating in excess of 20 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, for the period from August 19, 2004 through February 18, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2009). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 30 percent, but no higher, rating for bilateral pes planus, with hammer digit syndrome, metatarsalgia and Morton's neuroma, for the period from February 19, 2008 through January 21, 2009, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2009). 4. The criteria for a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from January 22, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). At the outset, the Board notes that, given the favorable disposition of the claim for service connection for arthritis, claimed as swollen and painful joints to include the hands, wrists, elbows, neck, back, hips, and knees, the Board finds that all notification and development actions needed to fairly adjudicate each aspect of the appeal, as to this claim, have been accomplished. Regarding the remaining claims herein decided, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for a bilateral foot disability, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The November 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2004 letter. Post rating, a May 2008 letter and an August 2008 SOC set forth the rating criteria for evaluating disabilities of the feet. The May 2008 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the above-described notice, and opportunity for the Veteran to respond, the February 2009 and August 2009 SSOCs reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA treatment records, private treatment records and opinions, and the reports of September 2004, June 2005, and December 2009 VA examinations. Also of record and considered in connection with this matter are various written documents provided by the Veteran, his wife, and his representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with the claims for higher ratings is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree (10 percent for arthritis) within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran asserts that his arthritis, claimed as swollen and painful joints to include the hands, wrists, elbows, neck, back, hips, and knees, began during active duty service. As explained below, considering the claims in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds a sufficient basis for granting service connection for this claim. The Veteran has alleged that he had joint pain during service, in his legs, ankles, and feet, and this represented the onset of his palindromic rheumatoid arthritis. Service treatment records reflect that the Veteran complained often of bilateral foot and ankle pain during service, due to pes planus. In June 1970, the Veteran complained of pain in the left tibia spreading from the foot. He also complained of pain in the right tibia. The Veteran's joints and films were noted to be "ok." The impression was pes planus. At separation, the Veteran marked that he had a history and/or current symptoms of foot trouble, cramps in his legs, and swollen or painful joints. When further questioned by the physician conducting the separation examination, the Veteran specified that his joint pain was a swollen right ankle that was treated at Fort Sill for an infection. He was not asked to elaborate on his complaints of cramps in his legs. June 1970 x-rays were within normal limits. After service, the Veteran complained of foot pain for many years. In July 1997, the Veteran first complained of musculoskeletal pain and neck pain. In February 2005, the Veteran was diagnosed with degenerative joint disease of the fingers, neck pain, and pain over the long head of the biceps. Records from Dr. Newman, the Veteran's private treating rheumatologist noted that the Veteran complained of intermittent episodes of swollen and tender joints affecting his hands, elbows, knees, and feet since the 1970s. In June 2009, Dr. Newman noted that the Veteran had been diagnosed in his clinic with inflammatory arthritis with a pattern that would be considered palindromic rheumatism. He noted that "[i]f the pattern [of the Veteran's symptomatology in service] [wa]s very similar to what [the Veteran] had described . . . then indeed it [would be] very likely that it was the same condition that I was following [him] for, that [he] reported during [his] service in the military." On January 2010 VA examination, the physician noted that after a review of the Veteran's radiological data and a physical examination, she could not find any evidence of rheumatoid arthritis. The Veteran was instead diagnosed with erosive osteoarthritis. Regarding the Veteran's episodes of acute swelling of the joints, the examiner noted that the Veteran may have crystal-induced arthropathy (gout); however, testing of uric acid levels was normal. The physician noted that the Veteran had been possibly diagnosed with mild inflammatory component underneath his degenerative arthritis, but his x-rays did not show any changes consistent with rheumatoid or gouty arthritis. His x-rays revealed pure degenerative arthritic changes. The examiner noted that if the Veteran had palindromic rheumatoid arthritis, that would be considered an autoimmune disease, which could start at any time in his life, with symptoms of swelling and joint pain. According to the Veteran, he had been having these episodes since service, and the physician noted that she did not see any documentation of that in the service records. The examiner opined that at this point, it was less likely than not that the Veteran's current arthritic problems were related to his report of swollen joints and cramps in his legs while in service. No definitive diagnosis or rationale was provided. In February 2010, Dr. Bash submitted an opinion on the Veteran's behalf opining that the Veteran's complaints of a swollen right ankle in service was the onset of his rheumatoid arthritis. He noted that although the x-ray images in June 1970 were negative, this did not rule out early palindromic rheumatoid arthritis. Dr. Bash noted that the Veteran complained of swollen and painful joints and foot pain during service, and he opined that his foot pain was the first sign or symptom of palindromic rheumatoid arthritis. He afforded strong weight to Dr. Newman's opinion that if the Veteran's early symptoms were of the same pattern, then his rheumatoid arthritis would have started in service. Finally, he noted that the time lag between swollen joints in service and the current pathology was "consistent with medical principles and the natural history of the disease." In this case, the Board notes that the evidence reflects that the Veteran has been consistently diagnosed with palindromic rheumatoid arthritis. However, the record includes conflicting medical opinions on the question of whether the Veteran's in- service complaints of foot, ankle, and leg pain are related to current palindromic rheumatoid arthritis. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board is not free to ignore a medical opinion (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject a medical opinion based on its own medical judgment (see Obert v. Brown, Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based on lay assertions. The fact that an examiner relied on the assertions of the Veteran and/or another layperson does not render the opinion not credible unless the Board finds that the lay statements are not credible. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). First addressing the opinion weighing against the Veteran's claim, the Board notes that the VA examiner failed to state any rationale for her opinion. She opined that the Veteran may be diagnosed with palindromic rheumatoid arthritis, and this was an autoimmune disease, which could start at any time in his life, with symptoms of swelling and joint pain. She noted that she did not see any documentation of arthritic symptomatology in service, but she failed to note that the significance, if any, of the Veteran's complaints of joint pain and swelling and leg cramps at separation. Without any rationale for her opinion, the Board affords the opinion very little, if any, probative weight. The remaining private medical opinions of record are in favor of the Veteran's claim. Regarding those opinions, the Board has evaluated the totality of the evidence in determining that the statements of the Veteran have been consistent throughout the appeal and are corroborated by independent evidence. Hence, the Board also accepts as credible and probative the medical opinion evidence that is based, in part, on these credible lay assertions. Given the totality of the evidence, to particularly include the noted lay and medical evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for palindromic rheumatoid arthritis are met. III. Higher ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the RO assigned staged ratings for the Veteran's foot disabilities-20 percent from the August 19, 2004 effective date of the grant of service connection through January 21, 2009, and 30 percent from January 22, 2009. Hence, the Board must consider the propriety of the ratings assigned at each stage, as well as whether any further staged rating of the bilateral foot disability is warranted. Both of ratings have been assigned, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284, for residuals of foot injury. Under Diagnostic Code 5284, a 20 percent rating is assigned for moderately severe symptoms of a foot disability. A 30 percent rating is warranted for severe symptoms. A 40 percent rating is assigned with actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. As will be discussed in more detail below, rating all the Veteran's foot disabilities together as one disability under Diagnostic Code 5284 affords him the highest possible rating. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). A. Period from August 19, 2004 through February 19, 2008 Considering this evidence in light of the applicable criteria, the Board finds that a rating in excess of 20 percent for the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, is not warranted at any point from the August 19, 2004 effective date of the grant of service connection through February 18, 2008. Private records dated in December 2004 reflect that the Veteran complained of pain in both feet. Neurovascular examination was grossly intact to light touch. The Veteran had no tingling when percussing the posterior tibial nerves bilaterally. The Veteran had a positive Mulder's sign in his right second interspace. Dosalis pedis and posterior tibial equaled two out of four bilaterally. The Veteran had decreased medial arches bilaterally with valgus deformities of the medial malleolus bilaterally. The Veteran had contractures of the proximal interphalangeal joints two to five bilaterally with prominent metatarsal heads plantarly. There was pain on palpation to the plantar metatarsal heads two to four bilaterally. The Veteran had the fat pad displaced distally to the metatarsal heads bilaterally. He had pain on palpation in the right second interspace and also the bases of the proximal phalanx, second and third, bilaterally. The Veteran had an abductory twist of his forefoot when ambulating, causing a shearing motion about his metatarsal heads. The Veteran also had first metatarsal dorsal and medial exostosis bilaterally with mild lateral deviation of his hallus. The Veteran was diagnosed with bilateral pes planus, hammer digit syndrome two to five bilaterally, and metatarsalgia of the bilateral feet. The Veteran received a steroid injection in December 2004 to relieve his symptoms. On June 2005 VA examination, the Veteran complained of bilateral foot pain. The Veteran noted that he was often on his feet. The Veteran reported that his feet ached all the time and that prolonged standing was an irritating factor. He did not ambulate with a crutch, brace, or cane, but used a walking stick for support. Modifications to his shoes had provided him with some relief. On physical examination, the Veteran's pedal pulses were three out of four with normal distal cooling. Positive pedal hair was noted, with no trophic changes of the skin. No cyanosis or edema was noted. Dermatological examination reflected bilateral hyperkeratosis of the hallux. No other lesions were noted. Range of motion of the subtalar joint was symmetrical, within normal limits, and pain free. Range of motion of the first metatarsophalangeal joint was also within normal limits. Digits one through five were rectus in alignment. No bunions or hammertoes were noted. Pain to palpation was described at the third web space of the right foot with positive Tinel's sign. There was also positive Mulder's sign with an audible and palpable popping of the digital nerve. The left foot was noted to have a similar condition, only not as significant. There was a medial arch present, and with weight bearing the Veteran maintained a medial arch. No pes planus was found. The Veteran could rise to his toes, but he complained of pain. His shoes revealed no excessive wear pattern. Muscle strength was normal bilaterally, and reflexes were symmetrical and present. The Veteran was diagnosed with Morton's neuroma bilaterally, right greater than left. The Board finds that this medical evidence reflects that, from August 19, 2004 through February 18, 2008, the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, was not any more than moderately severe in nature. Notably, on VA examination in June 2005, the Veteran had full range of motion of his joints. Although the Veteran reported pain in his feet, he was able to stand all day while working as a farmer. Additionally, the VA examiner specifically found that the Veteran's shoes revealed no excessive wear pattern, and his muscle strength was normal bilaterally. Accordingly, although the Veteran does appear to have pain on use of the feet with interference with daily activities, in the absence of any objective findings of other symptomatology, compatible with a higher, 30 percent rating under Diagnostic Code 5284, including severe symptomatology, such a rating is not warranted. Further, the examiner's finding that the Veteran's symptoms and pain were somewhat relieved by orthotics, also indicates that the disability picture is more compatible with a moderately severe rating. The Board points out that the 20 percent rating for the period from August 19, 2004 to February 18, 2008 is appropriate even when functional loss due to pain and other factors, consistent with 38 C.F.R. §§ 4.40, and 4,45, and DeLuca, is considered. In this regard, although the June 2005 VA examiner did note that the Veteran had limitations on standing, the Veteran noted that he was on his feet every day as working as a farmer. The Veteran also reported using a walking stick for ambulation, but he did not use a cane, brace, or crutch. While the Board acknowledges that the Veteran suffered functional loss due to his pain during this period-such as pain while standing for prolonged periods- such is contemplated in the assigned 20 percent rating for moderately severe bilateral foot disability. As there is no evidence of any functional loss in addition to that contemplated in the rating schedule, assignment of a higher rating, on this basis, is not warranted for this period. B. Period since February 19, 2008 Considering this evidence in light of the applicable criteria, the Board finds that a 30 percent, but no higher rating for the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, is warranted from February 19, 2008. The Veteran was afforded a VA examination in February 2008. The Veteran described his pain level as usually a five, but it could get as high as a 10. He had no weakness and some stiffness when the pain was severe. No swelling, redness, or heat was noted. Feet were very fatigable due to the pain. Pain increased with walking, and at night when trying to rest. The frequency of his pain was related to his activity. The Veteran had a cane. He did not have corrective shoes, but he did have inserts. The Veteran's occupation as a timberman was severely impacted by his inability to walk. His productivity had decreased significantly over the past several years. The Veteran was unable to stand for more than 20 to 30 minutes, and unable to walk for any significant distance. Physical examination of the feet revealed good pulses. The feet were warm. There was normal hair distribution. There was bilateral hammer digit deformity noted of the toes two through five. The Veteran had a pes planus deformity. There was pain on palpation of the distal plantar aspect of the feet between the second and third metatarsal. There was no significant pain on compression of the heel. There was some mid-foot pain on palpation, as well as bilateral Tinel sign consistent with tarsal tunnel syndrome. No edema instability was found. Gait was normal, but the Veteran did use a cane for stability. Nonusual callosities were noted. The Veteran had no hallux valgus. There was active motion of the metatarsal phalangeal joint of the great toe. The Veteran had limited range of motion of the right and left foot. The Veteran was diagnosed with pes planus bilaterally, hammer digit syndrome two through five bilaterally, bilateral Morton's neuroma, metatarsalgia bilaterally, tarsal tunnel syndrome bilaterally, bilateral calcaneal spurs, and bilateral foot pain secondary to all aforementioned disabilities. In September 2008, the Veteran reported that he had symptoms of weakness and pain, which resulted in falls. Pain at night also kept the Veteran from sleeping. His wife further noted that in the most recent years, the Veteran's pain caused stumbling, which would sometimes result in further injury. His activity level and overall functioning were very much limited because of the pain in his feet. The Veteran was afforded another VA examination in January 2010. The Veteran complained of pain, stiffness, and weakness while standing and walking, and swelling of the feet while walking. The Veteran used a cane for ambulation. He reported being unable to stand for more than a few minutes, and only able to walk one quarter of a mile. The Veteran had been fitted for orthotic inserts, which had a fair effect on relieving his symptoms. On physical examination of the bilateral feet, the examiner found no evidence of swelling or instability, but painful motion, tenderness, and weakness were noted. The Veteran had decreased strength with active resistance. The Veteran had hammertoes on the second, third, and fourth toes. Clawfoot and hallux valgus were not found. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. The Veteran had inward bowing at the achilles, with pain (but no spasm) on manipulation. No pronation was found. The Veteran had loss of muscle mass over each entire foot. The Veteran walked with a limp using a single cane. He was unsteady at times. X-rays of the feet revealed normal right and left feet. The Veteran noted that he retired in 2004 due to several service-connected disabilities, including his feet. Collectively, the medical evidence from the February 19, 2008 VA examination reflects that the Veteran has had increasing problems with functional impairment due to the pain in his feet. The Veteran started using a cane for ambulation and support, to help prevent falling and stumbling due to bilateral foot pain and weakness. He was unable to stand for more than 20 or 30 minutes. The examiner found that the Veteran's bilateral foot disabilities had a severe impact on his job as a timberman because of his limited ability to walk. The Veteran also described increased symptomatology of pain and stiffness, with a great deal of fatigue secondary to his pain. Resolving all reasonable doubt in the Veteran's favor, the Board finds that, since the date of the February 19, 2008 VA examination, the evidence has reflected severe symptomatology associated with the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia and Morton's neuroma As the Veteran has described severe functional loss due to pain, assignment of the 40 percent rating in this case is also consistent with the provisions of 38 C.F.R. §§ 4.40, and 4,45, and DeLuca. However, at no point since February 19, 2008 has the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia and Morton's neuroma, met the criteria for the maximum, 40 percent rating under Diagnostic Code 5284, as actual loss of use of either foot has not been shown. C. Both periods The Board notes that, because the Veteran's primary foot complaints have been chronic pain, weakness, and tenderness, there is no basis for assignment of separate ratings simply because the service-connected disability comprises various diagnoses, as noted above. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14). As the Veteran's various foot disabilities are manifested by overlapping symptoms, separate ratings cannot be assigned for each disability without violating the rule against pyramiding. See 38 C.F.R. § 4.14. The Board also finds that no other potentially applicable diagnostic code provides a basis for assignment of a higher rating for either period under consideration. Because the Veteran had been diagnosed with bilateral pes planus, Diagnostic Code 5276 (for acquired flatfoot) is for consideration. However, given the objective evidence indicating not more than overall moderately severe symptomatology prior to February 19, 2008, a rating in excess of 20 percent would not be assignable under this code, as the next higher 30 percent rating requires evidence of severe disability, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Moreover, given the evidence of overall severe symptomatology from February 19, 2008, a rating greater than 30 percent would not be assignable under this code, as the 50 percent rating requires evidence of pronounced disability, with extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. While Diagnostic Code 5279 for metatarsalgia, and Diagnostic Code 5282 for hammertoes. are also for consideration, as only a 10 percent rating is assignable under each, neither code provides a basis for assignment of any rating higher than 20 or 30 percent. Ratings for other foot disabilities are also available under Diagnostic Codes 5277 through 5283 for weak foot, claw foot (pes cavus), hallux valgus, hallux rigidis, and malunion or nonunion of tarsal or metatarsal bones. See 38 C.F.R. § 4.71a. However, in the absence of evidence of any of these disabilities, evaluation of the bilateral foot disability under any of these codes is not warranted. The bilateral foot disability also is not shown to involve any other factor(s) warranting evaluation under any other provision(s) of VA's rating schedule. For all the foregoing reasons, the Board has applied the benefit- of-the doubt doctrine in determining that, from February 19, 2008, the criteria for a 30 percent rating are met, but finds that the preponderance of the evidence is against assignment of any higher rating before and after that date. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for palindromic rheumatoid arthritis affecting multiple joints is granted. An initial rating in excess of 20 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from August 19, 2004 through February 18, 2008, is denied. A 30 percent rating percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from February 19, 2008 through January 21, 2009, is granted, subject to the legal authority governing the payment of compensation benefits. A rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, from January 22, 2009, is denied. REMAND The Board's review of the claims file reveals that further RO action is warranted on the claims remaining on appeal. With regard to the claim for a higher rating for bilateral foot disability on an extra-schedular basis, as mentioned, the February 2008 examiner opined that the Veteran's bilateral foot disabilities severely impacted his ability to work as a timberman. When considered in the context of the increased rating claim for which an appeal has been perfected, this evidence suggests that the bilateral foot disabilities may result in marked interference with employment-i.e., beyond that contemplated in the assigned rating-a consideration for invoking the procedures for assignment of a higher rating on an extra- schedular basis, pursuant to the provisions of 38 C.F.R. § 3.321(b). However, the record reflects that the RO has not adequately considered the provisions of 38 C.F.R. § 3.321(b). No SOC or SSOC includes any citation to the regulation, or discussion as to whether, since February 2008, the Veteran is entitled to a higher rating for bilateral foot disability on an extra-schedular basis. Given the Veteran's assertions, the February 2008 VA examiner's opinion, and to avoid any prejudice to the Veteran, the RO should address the applicability of the provisions of 38 C.F.R. § 3.321(b), in the first instance (and, if denied, give him and his representative notice and an opportunity to respond). See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Regarding the matter of service connection for an eye disability, claimed as glaucoma, the Board notes that VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran has not been provided an examination in connection with his claim for service connection for an eye disability. In February 2010, Dr. Bash submitted a medical opinion regarding the Veteran's claim for service connection for an eye disability, claimed as glaucoma. He opined that the Veteran's glaucoma was likely secondary to his arthritis by way of an autoimmune pathway. He noted that the Veteran had been treated with arthritis for over 20 years, and his steroid treatments to treat arthritis caused his glaucoma. As rationale, he quoted the website, Web MD, noting, "[s]teroid-induced glaucoma is a form of open-angle glaucoma that usually is associated with topical steroid use, but it may develop with inhaled, oral, intravenous, periocular, or intravitreal steroid administration" (emphasis added). The Board finds that Dr. Bash's opinion does not support an allowance of the claim. The record clearly reflects that the Veteran was diagnosed with glaucoma sometime prior to his surgery in 2003. The record also reflects that although the Veteran was receiving treatment for arthritis for many years, he was mainly treated with non-steroidal anti-inflammatory drugs. In fact, it was only after the Veteran was diagnosed with glaucoma that he was prescribed prednisone by his rheumatologist or given steroidal injections by his podiatrist. Further, the use of the word "may" in the physician's rationale is merely suggestive and insufficient to establish a nexus. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus). Nevertheless, as the Board finds that, as a link between steroidal use for service-connected disabilities and glaucoma has been indicated, a medical examination and opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-is needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. Accordingly, the RO should arrange for the Veteran to undergo VA ophthalmology examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent medical facility. On remand, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should include a request that the Veteran submit or identify any prescription or documentation of steroid treatment prior to his diagnosis of glaucoma. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO's letter should include a request for the Veteran to submit or identify any prescription or documentation of steroid treatment prior to his diagnosis of glaucoma. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo ophthalmology examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability/ies affecting the eyes, to include previously diagnosed glaucoma. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service or to service-connected disability. In rendering the requested opinion, the physician should specifically consider the in-and post-service treatment records, Dr. Bash's February 2010 opinion, as well as the Veteran's contentions. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for an eye disability, claimed as glaucoma; as well as the claim for a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia and Morton's neuroma, from February 19, 2008, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). The RO should adjudicate each claim in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs